Holding

An ex parte decree passed against a party who was not served in either the trial or appellate proceedings is not a decree against that party, and such a party may file an application under Order IX Rule 13 in the trial court to set aside the decree, allowing a joint decree to be partially set aside.

Summary

Smt. Ram Lubhai, a minor daughter of the vendor, sued three brothers for possession of land on the basis of a pre-emption right. Only one brother, Kewal Ram, was served; the other two brothers were served by substituted service and a decree was passed ex parte against them. The brothers appealed, but were not properly served in the appellate proceedings, and the appellate decree was dismissed. The unserved brothers later filed an application under Order IX Rule 13 of the CPC in the trial court to set aside the ex parte decree, which the trial court allowed, leading to a partial reversal of the decree. The High Court upheld the trial court's order partially, and the Supreme Court held that a decree passed without service is not a decree against the unserved party, allowing the Order IX Rule 13 application and permitting a joint decree to be partially set aside. Consequently, both appeals were dismissed, leaving the decree against the served brother intact and setting aside the decree against the unserved brothers.

Issues considered

Whether an application under Order IX Rule 13 of the CPC is maintainable before the trial court after an appellate decree has been passed when the decree against the applicant was passed ex parte without service.
Whether a joint decree can be partially set aside when some parties were not served in the original suit and appeal.
Whether a decree passed without notice to a party merges into the appellate decree or remains ineffective against that party.

Legislation cited

Code of Civil Procedure, 1908s. Order IX Rule 13
Punjab Pre-emption Act, 1913

Subjects

ex parte decreeOrder IX Rule 13service of processpre-emption rightjoint decreecivil proceduredecree mergerappellate jurisdiction

Judgment

KEWAL RAM A
v.
SMT. RAM LUBHAI & ORS. AND VICE VERSA
·-~
MARCH 26, 1987

[V. KHALID AND G.L. OZA JJ.] B

Code of Civil Procedure, 1908, Order JX Rule 13 scope of-
• )- Application for setting aside an exparte decree passed by the Trial Court
as well as by the Appellate Court-Whether an application filed under

- ;..~ Order IX Rule 13 before the Trial Court is in order.
c
Joint Decree in a pre-emption suit passed against three defendants
one contesting and the other two ex parte and unserved and confirmed
~ by the appellate court-Trial Court accepting an application under
~ Order IX Rule 13 by the unserved defendants, and setting aside the
decree against them only-Propriety of the order.
D
One Kain Ram was the owner of 90 Kanals of land. He sold this
land in favour of three brothers, Kewal Ram, Chet Ram and Kuldip
Ram for a consideration of Rs.65,000 by a registered sale deed dated
1.8.1966. Kewal Ram is residing in Village Badala in Jullunder District.
<>- ··~ Chet Ram and Kuldip Ram were residing at 71, Windsor Road, Forest
Gate, London. E

Smt. Ram Lubhai, minor daughter of Kain Ram filed a suit for
possession of the land on the ground that she being the daughter of the
vendor had superior right of pre-emption as against the vendees who
were strangers. Kewal Ram alone was served in the suit. The other two
't were not served. Substituted service was, therefore, taken for service on F
'J.
' '
them by publication in a vernacular paper. The suit was decreed on
31.7.1969 against all the three defendants, ex parte against Chet Ram
and Kuldeep Ram. Kewal Ram filed an appeal against this decree and
judgment. He made his brothers Chet Ram and Kuldip Ram as pro-
for ma respondents giving their village address for service. In the appeal
also they were served by substituted service. The appeal was heard on G
5.1.1971 and was dismissed.
---', On 24.3.1971, Kuldip Ram and Chet Ram tiled an application
under Order 9, Rule 13 ofC.P.C. in the Trial Court for setting aside the
ex-parte decree against them on the ground that they were neither
H
served in the Trial Court nor in the Appellate Court. The Trial Court

685
686 SUPREME COURT REPORTS . (1987] 2 S.C.R.

A accepted the application and set aside the decree passed. Against this ·-y~.
order dated 10.1.1972, the plaintiff filed a revision petition in the High
Court of Pnnjab and Haryana as C.R.P. No. 147 of 1972. The High
Court felt that there was no error of jurisdiction in the order sought to
be revised, but held that since Kewal Ram had contested the suit, there
was no ground to set aside the decree against him. On this around, the
B petition was partly allowed. The decree against Kewal Ram was allowed
to stand but was set aside against the other two. The review petition ~ •
tiled by Smt. Ram Lubhai was dismissed by the High Court. Hence the
appeals by specialleave. ~- _

Dismissing the appeals, the Court,
c
HELD: It is well settled that when a decree of the Trial Court is
either confirmed, modified or reversed hut the Appellate decree, except
when the decree is passed without notice to the parties, the Trial Court
decree gets merged in the appellate decree. But when the decree is
passed without notice to a party, that decree will not, in law, be a decree
D to which he is a party. Equally so in the case of an appellate d.ecree. In
this case these two persons were not served in the suit. A decree was
passed ex-parte against them without giving them notice of the suit. In
law, therefore, there is no decree against them. In the appeal also they
were not served. If they had been served in the appeal, things would
have been different. They could have put forward their case in appeal
E and got appropriate orders passed. But that is not the case here. That
being so, there is no bar for an application by them before the Trial
Court under Order IX, Rule 13, to set aside the ex-parte decree against
them. [689G-H; 690A-B]

There is no error of law in allowing a joint decree to stand against ,\•
F the person who contested throughout while setting aside the ex-parte
decree passed against others without serving them personally on admit-
ting the application under Order IX Rule 13 C.P.C. [690C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 15 of
1974.
G
From the Judgment and order dated 24. 1.1973 of the Punjab and
Haryana High Court in Civil Revision No. 147/72.

A.B. Rohtagi, A. Minocha and Mrs. V. Minocha for the Appel-
H !ants in C.A. No. 15 of 1974 and Respondent in C.A. No. 1875 of
1974.
KEWAL RAM v. RAM LUBHAI (KHALID ,J.] 687

.....,,,. \,
Rajinder Sachhar, K.B. Rohtagi, Praveen Jain, S.K. Dhingra A
8.nd Baldev Atrey for the Respondents in C.A. No. 15/1974 and
Appellant in C.A. No. 1875 of 1974.

R.B. Da.tar, Kailash Vasdev and Naunit Lal f?r Respondent No.
2 and 3.
B
r )- The Judgment of the Court was delivered by
I
KHALID, J. These two appeals arise from the same suit and can
- ~
be disposed of by a common Judgment. The facts necessary to under-
stand the question involved in the appeals can be briefly stated as
follows: c
;..
-i One Kalu Ram was the owner of 90 kanals of land. He sold this
land in favour of three brothers, Kewal Ram, Chet Ram and Kuldip
Ram for a consideration of Rs.65,000 by a registered sale deed dated
1-8-1966. Kewal Ram is residing in Village Badala in Jullunder Dis-
trict. Chet Ram and Kuldip Ram were residing at 71, Windsor, Road, D
Forest Gate, London E-.7.

Smt. Ram Lubhai, minor daughter of Kalu Ram, the vendor,
:> ·y filed a suit, from which these appeals arise, for possession of the land
on the ground that she being the daughter of the vendor had superior
right of pre-emption as against the vendees who were strangers. Kewal E

.
I

~)_
Ram alone was served in the suit. The other two were not served.
Substituted service was, therefore, taken for service on them by publi-
cation in a vernacular paper. The suit was decreed on 31-7-1969
against all the three defendants, ex-parte against Chet Ram and
Kuldeep Ram. Kewal Ram filed an appeal against this decree and
Judgment. He made his brothers Chet Ram and Kuldip Ram as pro- F
forma respondents giving their village address for service. In the
appeal also they were served by substituted service. The appeal was
heard on 5-1.1971 and was dismissed.

On 24-3-1971, Kuldip Ram and Chet Ram filed an application
under Order 9, Rule 13 of C.P.C. in the Trial Court for setting aside G
·---< the ex-parte decree against them on the ground that they were neither
served in the Trial Court nor in the Appellate Court. This application
was resisted by the plaintiff on the ground that the application before
the Trial Court was incompetent since the decree had merged in the
appellate decree. Evidence was taken and after hearing the parties the
Trial Court set aside the entire decree. The Trial Court held that H
688 SUPREME COURT REPORTS [1987] 2 S.C.R.

A Kuldip Ram and Chet Ram were residing in England and no attempt
was made to serve them personally. That being so, the application was
competent in the Trial Court as they were neither served in the Trial
Court nor in the Appellate Court.

Against this order dated 10. J.1972, the plaintiff filed a revision
B petition in the High Court of Punjab and Haryana as C.R.P. No. 147
of 1972. The High Court felt that there was no error of jurisdiction in
the order sought to be revised, but held that since Kewal Ram had
contested the suit, there was no ground to set aside the decree against
him. On this ground, the petition was partly allowed. The decree
against Kewal Ram was allowed to stand but was set aside against the
c other two.

Not being satisfied with this order, the plaintiff filed an applica-
tion for review on the ground.that the decree for possession by way of
pre-emption was joint against all the defendants, that there was
neither specification of the shares in the land for the three different
D vendees not specification of the purchase price paid by them and that
as such the order setting aside the decree in part was bad. For this
purpose reliance was placed on a full Bench decision of the Lahore
High Court, reported in AIR 1945 Lahore 184. Reliance was also
placed on the proviso to Order 9, Rule 13 C.P.C. This review petition
was dismissed by the High Court by order dated May 30, 1973, relying
E upon the full Bench decision of the Pun jab and Haryana High Court in
the case of Kartar Singh v. Jagat Singh and Ors., !LR 1971 2 Pun. &
Har. 110. Hence these appeals by special leave, the earlier (C.A.
15174) by Kewal Ram and the other (C.A. 1875174) by the plaintiff.

The learned counsel for the plaintiff contend~d that the two :i..,
F brothers of Kewal Ram were at all relevant times aware of the
pendency of the suit and that the Courts below committed an error in
setting aside the decree against them. To reinforce this contention, he
brought to our notice the fact that even in the appeal filed by Kewal
Ram, the address given of his brothers was the village address. He
further submitted that the application under Order 9, Rule 13 made
G before the Trial Court was incompetent since the decree passed by the ),..
Trial Court had merged in the appellate decree. He feebly put forward
a case of complicity between the two brothers to defeat the plaintiff.

Kewal Ram who is the appellant in the other appeal contended
that the decree was a joint decree and it was impermissible to set aside
H the decree in part and keep the decree in tact in part. According to him
KEWAL RAM v. RAM LUBHAI [KHALID ,J.] 689

when the decree was set aside against his two brothers it should have A
been set aside against him also.

Since the decree in question is one based on ihe right of pre-
emption it would have been possible for us to get rid of it and dispose
of the appeals by ·a short Judgment relying upon the Constitution
Bench decision of this Court in Atam Prakash v. State of Haryana and B
Ors., [1986] 2 SCC 249 by which decision the Punjab Pre-emption Act,
1913 was struck down except to a small extent. But that course is not
open to us in view of the following observation by this Court in the
above said Judgment:

"We are told that in some cases suits are pending in various
courts and, where decrees have been passed, appeals are
c
-...; pending in appellate courts. Such suits and appeals will
now be disposed of in accordance with the declaration
granted by us. We are told that there are a few cases where
suits have been decreed and the decrees have become final,
no appeals having been filed ag~inst those decrees. The D
decrees will be binding inter partes and the declaration

.\ granted by us will be of no avail to the parties thereto."

Since the decree has become final, the principle of the decision is not
attracted in this case.
E
That takes us to the question, whether the application under
Order IX, Rule 13 before the Trial Court, when the matter had been
decided by the appellate court, is proper. We proceed on the finding
""- that neither Kuldip Ram nor Chet Ram was served either in the suit or
~), in the appeal.
F
A feeble contention was put forward that fraud was practised
upon these two persons in not getting service effected on them. We do
not propose to consider this aspect of the case since this case was not
properly pleaded or proved. For the purpose of this Judgment, we
accept the Conclusions arrived at by the court below that these two
persons were not served either in the suit or in the appeal. If so, what G
--1 is the position. It is well settled that when a decree of the Trial Court is
either confirmed, modified or reversed by the Appellate decree,
except when the decree is passed without notice to the parties, the
Trial Court decree gets merged in the appellate decree. But when the
decree is passed without notice to a party, that decree will not, in law,
be a decree to which he is a party. Equally so in the case of an appel- H
690 SUPREME COURT REPORTS [1987] 2 S.C.R.

A late decree. In this case these two persons were not served in the suit. y-<
A decree was passed ex-parte against them without giving them notice
of the suit. In law, therefore, there is no decree against them. In. the
appeal also they were not served. If they had been served in the
appeal, things would have been different. They could have put forward
their case in appeal and got appropriate orders passed. But that is not
B
the case here. That being so, there is no bar for an application by them
before the Trial Court under Order IX, Rule 13, to set aside the -{ .
ex-parte decree against them. This is the only point that arises in the
appeal filed by the plaintiff. The appeal has to fail and is dismissed.

The appeal by Kewal Ram is based on the plea that the decree
- ""'' ...
c passed by the Trial Court and the Appellate Court, against him and his
two brothers, was a joint and indivisible decree and as such the decree
).:
cannot be set aside in part, by allowing the application under Order
IX, Rule 13. He pressed into service a full Bench decision of the
Lahore High Court, reported in 1945 Lahore 184. We do not pause to
consider the principle settled in that decision because it has no applica-
D
tion to the facts of this .case. Here, the plaintiff has obtained a decree
agairist Kewal Ram, based on the right of pre-emption. That decree
has to stand, so far as Kewal Ram's right in the property is concerned.
She will have to work out here remedies either in execution or by a
partition suit to get her share in the properties. There is no merit in 'i ~
Civil Appeal No. 15 of 1974 either. This appeal is also dismissed.
E
The plaintiff will be entitled to get back two-thirds share of the
amount of consideration paid for the property, from Kuldip Ram and
Chet Ram. The parties are directed to bear their costs. :.( (

S.R. Appeals dismissed. ,\_,